Here we go again

On New Year’s Eve, shortly before dropping the ball in Times Square, Supreme Court Justice Sonia Sotomayor dropped the ball on women’s reproductive health.

The Little Sisters of the Poor Home for the Aged of Denver, Colo. is part of a class action lawsuit filed by the Becket Fund for Religious Liberty against the Department of Health and Human Services. Little Sisters does the admirable work of caring for elderly poor people in 30 homes across the United States. Members of the organization argue that the Affordable Care Act’s “contraception and abortion mandate … forces the Little Sisters to provide services that destroy human life, contradicting their very mission to respect it.”

Although there is an exemption from the HHS Mandate for religious organizations, Little Sisters does not qualify as a “religious employer,” and is, therefore, still required to provide its employees with access to contraception, abortion and sterilization services through a third party. Thus, while the organization does not directly have to pay for these reproductive health services, its stance still objects to being forced to indirectly “authorize someone else to provide” the services.

Little Sisters’ and the Becket Fund’s objections to the HHS mandate, however, are flawed. First, the mandate does not impose a substantial burden on Little Sisters’ exercising of religion, the standard for a violation of the free exercise clause of the First Amendment under the Religious Freedom Restoration Act. As originally promulgated in January 2012, the rule prohibited cost-sharing for FDA-approved prescribed contraceptives and contraceptive services (including sterilization) for women of reproductive age and provided a religious exemption for church organizations that rely primarily on members of the faith as employees.

Furthermore, under regulations promulgated in July 2013, an organization wishing to be exempt from the mandate only needs to self-certify that it is a non-profit organization that also holds itself out as religious and has religious objections to providing coverage for contraceptive services. Simply submitting a copy of this certification to the third-party administrator of the organization’s self-insured group health plan satisfies the organization’s obligations under the HHS mandate.

Here, Little Sisters and the Becket Fund argue that this self-certification process imposes a substantial burden on Little Sisters’ exercise of religion, but it is difficult to imagine how the federal government could have made the burden any less onerous without compromising women’s reproductive health. The Department of Health and Human Services, the agency charged with protecting the health of all Americans, is obligated to protect the reproductive health of American women.

When women have the ability to plan when they get pregnant, they are able to become more active participants in the public sphere. Unhindered by unexpected and unplanned pregnancies, women can “lean in,” in the words of Sheryl Sandberg, and compete with men in the workplace. Furthermore, the ability to space pregnancies leads to healthier childbearing and healthier children and reduces the need for abortion.

It is particularly important for contraception to be free, because women who cannot afford a deductible or the total cost of contraception would certainly have problems providing for unexpected children. In other words, Little Sisters argues that the simple completion of a form to relieve the organization from the obligation to directly provide access to birth control for its employees is an unbearable burden, far greater than the burden of unplanned pregnancies on women and their families.

Second, Little Sisters argues that its self-certification would authorize a third party to provide precisely the contraceptive services to which the organization objects. Even if the organization were completely exempt from the mandate, however, it would still be authorizing third parties to provide these services. As much as the Catholic Church would like to hope otherwise, not everyone subscribes to Catholic beliefs about appropriate sexual relationships. People have sex outside of marriage, and many people do not want every sexual encounter to result in a pregnancy. As such, individuals will seek out contraceptive services regardless of whether the Church permits them to do so. By abdicating its role in educating people about the use of contraceptives, a religious organization de facto authorizes a third party to fill that void.

Finally, Little Sisters and other similar religious organizations need to understand the simple fact that the use of a contraceptive does not kill an innocent life, assuming life begins at conception. Common contraceptive methods such as birth control pills merely prevent fertilization, in much the same way that the Church-endorsed natural family planning method prevents fertilization through careful planning and timing.

Perhaps the most interesting point is the disjunction between Little Sisters’ willingness to provide end-of-life care to any individual, regardless of religion, and its staunch imposition of its religious convictions on its employees through its refusal to fulfill the requirements of the HHS mandate.

If anything, there is a more substantial burden on employees who wish to use contraceptives but cannot afford them. They are forced to subscribe to the Church’s views on contraception, without any opportunity for the free exercise of religion in that sphere.

Joline Doedens is a second-year law student. Her column runs every other Wednesday. Send Joline a message @jydoedens.

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